Idaho Law Blog
By Matthew Stucki
This is the third of four posts discussing the execution of a valid Last Will and Testament. If you recall, the first step in executing a valid will requires the person executing the Will, the Testator, to have Testamentary Intent. The second step, deals with the requirement of Testamentary Capacity. The third step, which is the topic of this blog, requires that the execution of an individual’s Last Will and Testament be free from fraud, duress, or undue influence.
When preparing a Last Will and Testament for an individual, the individual often meets with an attorney to discuss how he or she would like to give away their property in the event of death. The individual also selects who he or she would like to represent them, a Personal Representative, upon their death and distribute the property as outlined in the Last Will and Testament. In most instances, it is my experience that the individual that I am working with to draft a Last Will and Testament desires to give everything to his or her children, and he or she keeps each child apprised of the contents of the Last Will and Testament. This process is a built in safe-guard against fraud, duress, and undue influence as each child of the individual or Testator can hold the other children accountable and prevent each other from bad conduct.
However, I recently had a case wherein a child of testator appeared to have convinced his father into gifting him a large item from the estate, two days before the father’s death, while the father was in the hospital. The child drafted the document gifting the large item to himself and had his father sign it; that document was then attached to the father’s Last Will and Testament. None of the other children of the father where aware of the gift.
This scenario begs the question as to whether the gift attached to the Last Will and Testament was a valid gift? This question requires the answering of several other questions. Did the father know what he was signing, or did the son request a signature with the father unware of the contents of the document? Did the son take advantage of his father in a moment of incapacity and/or weakness? Did the father intend to make a gift to the son? If it is determined that the son did in fact take advantage of his father, then the gift documents attached to the fathers Last Will and Testament would be void as a matter of law. To answer these questions, it depends on the evidence that can be produced at trial. This can often be very costly. From my experience, to avoid these types of situations, it is always good to get others involved so that there is more than one individual that can testify as to the intent and circumstances surrounding a testator’s execution of his or her Last Will and Testament.
In order to be a valid Last Will and Testament, the Testator must voluntarily and freely execute the Last Will and Testament, and by so doing manifest that the contents are his or her desires, free and clear from fraud, duress and undue influence.
If you have any questions regarding whether a Last Will and Testament has been properly executed, free and clear from fraud, duress, and undue influence, contact our Idaho Estate Planning Team of lawyers.
Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Matthew P. Stucki and the Racine Olson team of Estate Planning attorneys in Pocatello, Idaho Falls, or Boise. You can also email Matthew P. Stucki directly at mps@racinelaw.net. We will answer your Idaho, Estate Planning questions and will help you determine how to meet your personal estate planning needs.
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